The corporate governance rules applicable to Portuguese listed companies – like those in EU Member States in general – derive from various sources: laws and regulations binding on companies, and corporate governance codes establishing sets of recommendations and best practices.
The main legal sources of corporate governance rules in Portugal are the Portuguese Commercial Companies Code, enacted by Decree-Law No. 262/86, of 2 September, as amended (CSC), which sets out the general legal framework governing companies, including, in particular, rules applicable to corporate bodies, shareholders’ general meetings, shareholders’ rights and obligations; and the Portuguese Securities Code, enacted by Decree-Law No. 486/99, of 13 November, as amended (CVMob), which is applicable to companies with capital open to investment by the public (among others, listed companies), setting out, in particular, specific information rules and transparency duties rules on the attribution of voting rights and shareholders’ general meetings, and, in certain matters, to companies in general.
As far as Portuguese corporate governance soft law is concerned, significant changes took place in 2013. The Portuguese Securities Market Commission (CMVM)2 approved a new Corporate Governance Code (the 2013 CMVM Code), replacing the Code that had been in force since 2010.3 The first private-initiative corporate governance code was also approved in 2013: the Code of the Portuguese Corporate Governance Institute (IPCG), a private association engaged in the investigation and promotion of corporate governance principles (this private-initiative code was updated in early 2014).4
Currently, another significant change in the Portuguese corporate governance framework is under way, as the two above-mentioned corporate governance codes currently in force are expected to be unified in a new corporate governance code issued by the IPCG. A draft of this code is currently under scrutiny by the corporate bodies of the IPCG and is expected to be published soon.
Despite their non-binding nature, listed companies are obliged to adopt one of the codes and declare, in their annual corporate governance report,5 to what extent the chosen corporate governance code is observed and, if that is the case, the reasons for not complying with any of its provisions (statement of compliance)6 − the ‘comply or explain’ rule. As for non-listed companies, which are not bound by these rules, these codes serve, to some extent, as guidelines on corporate governance best practice and therefore have a significant role at the decision-making level of directors and shareholders.
Regarding regulations about corporate governance, CMVM Regulation No. 4/2013, which revoked CMVM Regulation No. 1/2010 and governs (and includes a draft of) the annual report on corporate governance, entered into force on 1 January 2014. This CMVM Regulation introduced more flexibility in terms of the choice of a corporate governance code for listed companies. In fact, it establishes that listed companies shall adopt the CMVM Code or another corporate governance code produced by a competent entity and states that the choice is to be justified in the annual corporate governance report (while Regulation No. 1/2010 established several requisites that other corporate governance codes had to comply with). On the other hand, and even though the number of recommendations was reduced, information duties increased under Regulation No. 4/2013.
Specific types of companies are also subject to sectoral corporate governance rules – for instance, the corporate governance framework of state-sector companies is established in Decree-Law No. 133/2013, of 3 October (as amended), which enacted the State-Sector Companies Legal Framework.
In addition to the above, some Portuguese listed companies have their own corporate governance codes or manuals, which set out internal corporate governance guidelines.7
Portuguese listed companies’ compliance with corporate governance rules is confirmed through each company’s annual corporate governance report on two levels.
At an internal level, the company’s supervisory corporate body must certify the completeness of that report, in light of the provisions of the CVMob and CMVM Regulation No. 4/2013.
At a regulatory level, the content of the annual corporate governance reports is monitored by the CMVM, which, in its capacity as the securities market regulator, often asks listed companies for clarifications and additional information in connection with the reports.
In addition to this, the CMVM prepares an annual report regarding compliance with corporate governance rules by a significant number of listed companies (the CMVM Report),8 both at market-wide and individual levels.
More detailed information regarding corporate governance rules applicable to listed companies in Portugal is available at https://thelawreviews.co.uk/edition/the-corporate-governance-review-edition-7/1140926/portugal
For developments from the CMVM - Securities Market Commission https://www.cmvm.pt/pt/Pages/home.aspx
In 2014 the CMVM published their report on the Corporate Governance of Listed Companies. (available here)
CMVM - Comissão do Mercado de Valores Mobiliários
Laura Alves, 4 street
T +351 213 177 000